Textbook Publisher Pearson Takes Down 1.5 Million Teacher And Student Blogs With A Single DMCA Notice

from the 38-year-old-content-in-a-5-year-old-post-equals-1.5-million-dead-blogs dept

If there's one thing we've seen plenty of here at Techdirt, it's the damage a single DMCA takedown notice can do. From shuttering a legitimate ebook lending site to removing negative reviews to destroying a user's Flickr account to knocking a copyright attorney's site offline, the DMCA notice continues to be the go-to weapon for copyright defenders. Collateral damage is simply shrugged at and the notices continue to fly at an ever-increasing pace.

In case you don’t already know, we’re the folks not only behind this site and WPMU DEV, but also Edublogs… the oldest and second largest WordPress Multisite setup on the web, with, as of right now 1,451,943 teacher and student blogs hosted.

And today, our hosting company, ServerBeach, to whom we pay $6,954.37 every month to host Edublogs, turned off our webservers, without notice, less than 12 hours after issuing us with a DMCA email.

Putting aside for a moment the fact that Pearson somehow feels that a 38-year-old questionnaire is worth $120, and the fact that the targeted post was originally published in 2007, there's still the troubling question as to why ServerBeach felt compelled to take down 1.5 million blogs over a single DMCA notice. There's nothing in the DMCA process that demands an entire "ecosystem" be killed off to eliminate a single "bad apple." This sort of egregious overcompliance gives certain copyright holders all the encouragement they need to continue to abuse the DMCA takedown system.

Making this whole catastrophe even worse is the fact that Edublogs already has a system in place to deal with copyright-related complaints. As the frontline for 1.5 million blogs, Edublogs is constantly fighting off scrapers and spam blogs (splogs) who siphon off content. The notice sent to Edublogs had already been dealt with and the offending post removed, but these steps still weren't enough.

So, yesterday, when we got a DMCA notice from our hosts, we assumed it was probably a splog, but it turned out it wasn’t, rather just a blog from back in 2007 with a teacher sharing some materials with their students...

And the link they complained about specifically is still on Google cache, so you can review it for yourself, until Pearson’s lawyers get Google to take that down… or maybe Google will get shut down themselves ;)

So we looked at it, figured that whether or not we liked it Pearson were probably correct about it, and as it hadn’t been used in the last 5 years ’splogged’ the site so that the content was no longer available and informed ServerBeach.

Clearly though that wasn’t good enough for Serverbeach who detected that we still had the file in our Varnish cache (nevermind that it was now inaccessible to anyone) and decided to shut us down without a word of warning.

Well, there actually was a "word of warning." Farmer received the following notice that clearly states ServerBeach's DMCA policy, which, unbelievably, entails taking entire servers offline in order to "comply" with DMCA notices. For $75,000 a year, you'd think Edublogs would be entitled to a bit more nuance.

As for Pearson, it's a shame to see a zero-tolerance, all-uses-are-infringing attitude superseding any sort of educational benefit gained from being included in a teacher's class materials. Taking a look at the original post (below), it appears to be no different than a teacher photocopying course materials for attending students.

Hosting it online may make the test infinitely distributable, but there's no indication this was the teacher's intent. One of several problems in copyright law is the fact that what appears to be fair use to the layman is usually illegal. And the unintended consequences of actions taken in good faith tends to include a ton of collateral damage -- damages which usually far outweigh any perceived losses from non-commercial infringement. Because of this, hosting companies tend to prefer harming a relationship with a paying customer to finding their safe harbors under attack. For the sake of a $120 paper, ServerBeach was more than willing to drop a $75,000/year customer. Despite all the whining, copyright still has plenty of power. Too bad it's so easily abused.

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Exactly.But any of those people that copyright disputes like that can hire an attorney to sort the manner when it cost $4,000 to hire without the court cost. I'm in that kinda situation on Youtube with my Yourube poop/mash up videos. I don't have the money because I'm on disability for Asperger's and I'm legally blind in one eye,I have ketraconnius,glaucoma.

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I would live to have time left over from fighting SOPA, CISPA, ACTA, and whatever the next gopher that pops up to address reforming the DMCA to take out some of the stupid bits like the one that makes software to rip a DVD you own into a more usable format illegal and strengthen the safe harbor protections (is that the answer to "we all know why?"). Without the safe harbor protections, btw, websites wouldn't be able to host your potentially infringing comments at all. Websites with user-generated content would have a hard time existing. In fact, the DMCA clearly doesn't protect speech enough when you have 1.5 million student blogs being taken down over a one-page handout shared by a teacher for a class that ended 5 years ago and nobody has looked at since.

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That's funny. You seem to think that everyone who comments on this blog who doesn't tout a hardline pro-IP perspective is a piracy apologist and they all share the exact same opinions.

Hypocrisy cannot exist between the contradictory beliefs or statements of two different people don't share the same personhood, much less between several different people.

But while we're discussing it, the perspectives aren't mutually exclusive. Under the current system, it takes a court to determine it if there is an aggressive rightsholder trying to assert a copyright claim against a person who believes that their use is a fair use. However, it's broken that it has to get that far because the rightsholder should be able to determine that it's fair use and get over it instead of asserting a claim. But the system is set up so that the rightsholder has no incentive to allow fair use to go unchallenged and indeed has a monetary incentive to press every opportunity to assert copyright claims, even on material they don't own or in cases of clear fair use.

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"Hypocrisy cannot exist between the contradictory beliefs or statements of two different people don't share the same personhood, much less between several different people."

There does seem to be a delusion that people who post here regularly are part of some kind of hive mind. I'm often attacked for things I've never said - some of which are the direct opposite of what I actually think - because Mike or some other regular commenter has said it in the past.

That's why there's so many attacks on people for being pirates, for example - they don't understand that it's perfectly possible to support copyright itself but also believe that the current system is broken and the current enforcement methods are unworkable. Some people honestly seem to believe that if you question the current system, you must therefore be supporting piracy.

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"There does seem to be a delusion that people who post here regularly are part of some kind of hive mind."

It's a delusion shared by only two or three people who have some unknown incentive to troll. We act all sensitive about it so they continue.

Now they COULD have an agenda to support copyright feudalism by any means necessary. There's an insane amount of money to be made if future law establishes that no property is ever owned by the purchaser or that companies have a right to profit. Maybe these trolls collect a small piece of an investment toward that. But honestly, this is the Internet and people don't need to be paid to troll.

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Interesting how you're unable to either understand a simple point, or respond to said point without name calling and distortion.

It's quite simple. The system needs some form of due process to avoid problems like this and many other types of abuse. As it is right now, there's too much incentive to take down content in these ways even if the site in question was actually complying. Not acceptable - which ever way you slice it.

However, copyright maximalists and their defenders will usually come back with some kind of whining about how it should be obvious what's infringing and what's not. In cases like this, it's definitely not obvious and so a court needs to be involved. So, the system is broken - no due process before content is taken down and no way to know what's really fair use until after you take it to court (at your own expense after you've already had the content taken offline, of course).

It's quite clear and simple. Two separate issues, which when combined point to a broken system. No hypocrisy involved - if you bother to read the actual arguments being raised rather than attacking those who disagree, of course.

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Not hypocritical. The system is broken both ways.

Most laws do not have exceptions that allow people to break the law in special circumstances. The fact that copyright law is loaded with exceptions called fair use, but those exceptions are non-specific and can only be decided on a case-by-case basis, means every copyright case should be resolved by a court.

The problem is that fair use is very broad and ill defined, so that many instances of what looks like copyright infringement are actually fair use, but neither the copyright holder or the person using the material are able to make that call.

If there were no such thing as fair use, the so-called "piracy apologists" wouldn't be demanding a judge determine if something were infringing because all use would be infringing. As it is, many uses of copyrighted material (including in this case, I would argue) are fair use and totally legal.

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I would add that this problem is aggravated by copyright holders, who avoid letting the courts make clear-cut fair use decisions whenever possible, under the belief that maintaining vague fair use laws will prevent people from using their material in ways that totally legal. All it really does is prevent people from giving a hoot about copyright law.

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I like how you ignore all nuance in a situation to portray an entire group of people as a single entity who is a hypocrite for the individuals within it appearing to contradict each other in some way. Problem is there doesn't have to be any contradiction here, just nuance.

In order to illustrate my point about this being a community of individuals, I am going to speak in the first person here and not pretend to represent anyone else.

I have always believed that fair use needs to be strengthened. Fair use rights are a very important aspect of copyright, and without the very idea of copyright would be untenable. A person should not have to go to court and face a judge as well as all the expenses and time associated with doing so just to claim their fair use rights. Imagine what it would be like if a teacher had to spend 3 months defending themselves from criminal copyright charges every time they wanted to distribute a handout to their class of 21 students.

On the other hand, it should require a judge to approve of an action that shuts down 1.5 million blogs. There should be no easy way for censorious douchebags to silence the voices of millions of people just by sending a legal nastygram that costs and risks them nothing (go ahead and show me one case where someone was prosecuted for abusing DMCA).

Of course, this is just the opinion of one person. I'm sure my belief that a judge should be required for some things and not other things makes everyone a hypocrite. And to justify your piracy apologist comment, I'm just going to throw it out there that Redbeard wasn't such a bad guy, he was just misunderstood.

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Anyone with half a brain would notice that if there was a way to dispute the DMCA takedown without much bureaucracy and costs this could have been prevented. Regardless of TOS. And if the system was actually good ServerB would be throughly punished for broadly taking stuff down (because this time I agree that it's more the datacenter than the rights holder who is at fault EXCEPT that for God sake, it's a 38 year questionnaire posted in 2007........).

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claim that a judge should be the one to determine whether something is infringing before it can be taken down.

But you argue the system is "broken" if a judge has to determine what is fair use. Interestingly hypocritical.

Not sure what's hypocritical about that at all. Seems entirely aligned if you believe in the importance of free speech. You should always err on the side of allowing speech -- which is the case with both of those positions.

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Well, technically, the school should have filed a counter claim. The hosting company can not and should not be expected to start making judgement calls regarding who really owns the content and what is fair use. If you think it is fair use, send a counter letter. If you feel the notice is correct, then take the thing down yourself.

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Well, technically, the school should have filed a counter claim.

Probably, but the DMCA notice says they can file a counter-notice if the original DMCA claim is incorrect. Well it looks to me like the claim is correct, and it's ServerBeach's response to it that's inappropriate. Their policies don't seem to cover that scenario.

and that is exactly how it will continue until someone has the balls to introduce a system whereby those issuing false take downs are penalised to the same extent as those that infringe. the problem is it will go against the way the entertainment industries work. they want to be able to issue take downs, even when they know full well they are false, will do irreparable harm but costs them nothing and can get away with doing so.

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"and that is exactly how it will continue until someone has the balls to introduce a system whereby those issuing false take downs are penalised to the same extent as those that infringe. the problem is it will go against the way the entertainment industries work. they want to be able to issue take downs, even when they know full well they are false, will do irreparable harm but costs them nothing and can get away with doing so."

This wasn't a false takedown. It was a legally legit takedown of a post that a teacher assumed was fair use.

The moral of this story is that the system stifles free speech when it works AS DESIGNED.

We need copyright in general, but the current application of old copyright law to digital communications (equating all digital communications with mass distribution) was oppressive from the get go.

Re: Another perspective

What is even more SAD is that this is a questionnaire designed to help PREVENT SUICIDE. It's amazing that Pearson didn't even stop to think (before issuing the request for a DMCA notice) how horribly BAD, heartless and money grubbing it makes them look. I understand that copyrights have to be protected... but when did it become impossible to pick up the phone and call someone with a politely worded request? This has got to be horrible PR for Pearson ... that $120 is more important than disseminating material that could save lives. You know, SOME companies might actually think to themselves... "you know, this information is so important to get out - let's make it available for free and worry about making money off more extensive, supporting material." Who RUNS Pearson's PR department anyway? Do they even have one?

You confound bad management at "hosting company, ServerBeach"

with some sort of evil plot using DMCA to destroy the web. And you do so knowingly, therefore you're just plain dishonest. Blame here rests ENTIRELY with ServerBeach, as you even state.

This is typical wild over-reaction here at Techdirt, just use ANY angle to attack copyright, no matter how strained. You write hundreds of words to undermine copyright without any actual criticism of the bad policies at Edublogs.

Re: Re: You confound bad management at "hosting company, ServerBeach"

I was just about to say this.
Yet when has any hosting company challenged a notice like this? It would be nice if ServerBeach actually stood up and said they're not going to turn off 1.5 million blogs for the sake of a publication made in the 1970's.

Re: You confound bad management at "hosting company, ServerBeach"

Seriously, you want to do this type of comment .... this is beyond any doubt a fair use claim and the fact that 1.5 million people were affected makes the case for copyright to be abolished in its entirety and you want to say that someone did something wrong by 5 years ago posting 20 questions that someone else had written.

Shame on you, and shame on the copyright monopolists. This type of action is why people ignore copyright, and your type of comment is why people will ignore it more and more every day, until copyright laws are changed or removed from the law books.

Remember the monopoly was only granted very recently and was supported by the majority, but with the advances in technology the copyright laws are just holding innovation back. And to come on here and say that this site is supporting copyright is crazy, they have pointed out where a publisher has used the dmca to take down content and how it has affected 1.5 million people, that is news and should actually be headline news as it is another reason copyright needs to be abolished, hiding the wrongs that copyright does is not the way to move forward.

Re: Re: You confound bad management at "hosting company, ServerBeach"

Great idea. Let's abolish copyright and tear down a big part of the backbone of the American economy. Why pay writers and authors and actors and directors? Let them go become useful members of society and work in farming or manufacturing. God knows, the world needs more corn. We already have enough books.

And besides, once we've abolished copyright and the entire American creative industry, that'll give other nations the chance to excel and fill up the void we leave behind. Can you say Korean police dramas at 8 PM, Nigerian soap operas at 9 PM, and the latest flick from Bollywood at 10? That sounds like a good, wholesome American Wednesday night primetime programming schedule to me! Let's get going on this whole "ban the copyright" movement... yee ha!

I haven't seen so many bogus claims in one comment in a while. And it's not even a long comment. I wish it was satire, but I think more likely ignorance or trolling. Hard to tell the difference sometimes.

"Great idea. Let's abolish copyright and tear down a big part of the backbone of the American economy."

False dichotomy. Abolishing copyright would NOT tear down your "backbone," categorically. And it is NOT that big a part of the economy. Its sizeable, but the auto industry going under would have dwarfed all media by several times.

People would still create, media companies would still exist, Disney would still steal 100+ year old stories and remake them in their image. People have created since the dawn of man, they will create with or without copyright. They will even find ways to be paid for it without copyright, guaranteed. Do you really think that if copyright disappeared EVERY SINGLE creative industry and person would just throw up their hands and go "oh well, FUCK IT now!" and just stop? ALL of them? Really?

@Brian
"Great idea. Let's abolish copyright and tear down a big part of the backbone of the American economy. Why pay writers and authors and actors and directors? Let them go become useful members of society and work in farming or manufacturing. God knows, the world needs more corn. We already have enough books."

Except that writers, authors, actors, and directors (or let's just call them, collectively, 'artists') aren't making a single penny more than they already were with these DMCA take-downs. Only the publishers, producers, and labels (i.e. people who most certainly did not, in any way, create the content being infringed upon) profit off of this total eradication approach to said unlicensed content.

In fact, artists are far more likely to be WORSE off as a direct result of such take-downs because all it ends up doing is make it so that from the moment the content is taken down until the rest of eternity, they (or more specifically--their work) can no longer be discovered by anyone, EVER! End of story. Only those who were aware with a particular piece, prior to its disappearance, will ever know it existed. Final scene? Any targeted artists' fan-base can only shrink, and never grow.

Seriously, if it is the artists, their due credit, earnings, or simply their overall well-being that your heart is truly concerned for... well, then... I'm sorry to tell you, you're paddling in the wrong direction, pal.

The irony here, when you look at the full spectrum of actions being taken and the real-world impact the whole series of events results in... it is blatantly obvious that the true scum-bag, undeserving, thieving, 'PIRATES' in this shipwreck of a tale are the corporate copyrights holders of other peoples' work they are claiming as their own.

Incidentally, for anyone who may have always wondered or not otherwise had a very concrete idea of what exactly the term 'selling out' means -- the previous statement is the deep-rooted meaning of that phrase and is exactly why the greater majority of artists have so much contempt for fellow artists who wind up being one. Sell out artists willingly agree to sign away their rights of ownership (and thereby 100% of the credit for making) to their work to some irrelevant party or entity that did not creatively contribute to the growth of said work (at least not intentionally) in the least. To just give that right away for nothing more than one, single, big, fat, immediately accessible, lump sum, wad of cash--It's an insult to humanity, is what it is. And back to the troll touting their misguided perception of ethics: Come on... really? The people offering the most support to those that actually deserve to gain anything out of the work? The people doing the most to help bring any kind success to exactly who it should go to? The very people doing nothing more malicious or invasive or destructive than merely openly exposing themselves and their honest admiration of someone else's talent to the world? THOSE are the unethical people? Come on... REALLY?

Honestly, when the 'product' is any form of art, more than at any time, NO ONE should be granted or even be allowed to obtain ownership rights of something they had no part in bringing into existence. Descendants can be appropriately compensated through contract arrangements without revoking the credit their predescesors rightfully earned for anything so anyone about to jump in with that rebuttal as though it were valid can bury that impulse right now.

Re: You confound bad management at "hosting company, ServerBeach"

"You write hundreds of words to undermine copyright without any actual criticism of the bad policies at Edublogs."

Well, ignoring for now that you seem to have missed that most of those words were critical of Pearson and the DMCA rather than copyright (reading comprhension is still the enemy of certain people here it seems), which bad policies are you talking about?

Both articles seem to suggest that the DMCA request was dealt with and complied with in a timely manner, and the original article stressed that EduBlogs have even developed tools specifically to deal with the problems they face.

Re: You confound bad management at "hosting company, ServerBeach"

We have valid reasons to hate Big Content and to hate the MAFIAA.
This story is not an over-reaction.
The Solution is for a Teacher & Student Revolt over these Big Content Ripoff Companies and go total Open Source.
Fuck The Establishment !

Re: Re: You confound bad management at "hosting company, ServerBeach"

Re: You confound bad management at "hosting company, ServerBeach"

Yeah and can you also please explain why nothing happens when false DMCA notices get sent and legal shit gets shut down? Explain the government holding millions of users data hostage on the Megaupload servers?

Waow. Any website allowing use contributions should move their business from ServerBeach.

That whole story smells fishy to say the least.
Was Edublog's ecosystem particularly loaded with copyrighted stuff in general ?
Any financial ties between Pearson & ServerBeach that could explain this ?

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Imagen owning a business that is so rich that they can close down a customer who pays them $75 000 a year because someone posted 20 questions 5 years ago. They must be doing very very well, but hey at least now the they can let someone else host the servers and make the money , maybe the site can even get a better deal somewhere else outside of America where the DMCA is not used.

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There is always the possibility that Server Beach was well aware of what they were doing and were making a point of their own. If every host responded to DMCA requests in this manner, it would anger the public enough to demand action. A million and a half bloggers may turn out to be a good start.

@ #1 and #2: this isn't shown to be a false DMCA notice!

Your comments only show knee-jerk reaction to "DMCA".

A second reading also intrigued me with "scrapers and spam blogs (splogs) who siphon off content"! -- WELL, WELL! It's about time for it to be recognized here at Techdirt that using content created by others is at the very least unethical!

Re: @ #1 and #2: this isn't shown to be a false DMCA notice!

Re: @ #1 and #2: this isn't shown to be a false DMCA notice!

It's about time for it to be recognized here at Techdirt that using content created by others is at the very least unethical.

You really don't read this site at all, do you? Using content created by others can certainly be (but is not always) unethical. This position has been stated often over the years here. I'm surprised you missed that.

Re: @ #1 and #2: this isn't shown to be a false DMCA notice!

"It's about time for it to be recognized here at Techdirt that using content created by others is at the very least unethical!"

Notice how I just republished your words without your explicit permission. I assumed you'd be OK with it because of where I found them and you no doubt will agree. See how easy it is to use content created by others?

Vote with your wallet

Any word on whether or not Edublog will be switching hosting services? Not that there is any reason to believe another host would have acted any better, but still, it would register some small amount of disapproval.

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old post but in the interest of completeness, I did contact my rep at ServerBeach and this was her response-

======
In reference to Edublogs, who has recently professed how much they love us and will never leave, we tried numerous attempts to reach them and discuss the complaints against the blogs with them. We never want to lose business, but we have a responsibility to honor the AUP (DMAC) policy when a client is not responsive. It puts all customers in jeopardy when people do not comply (We can get shut down and fined). We even extended the response time from 24 to 48 because we really wanted to help them. See his comment at the bottom. (and we can NEVER going into a clientís content and disable certain parts. That is up to each client to manage thatÖ

Sauce for the goose

Hate to incite more mayhem, but it's hard to believe that Pearson, too, might not have a 35-year-old skeleton in the closet... a stray morsel of random content owned by others, worthy of a reciprocal takedown. Search party, anyone?

Of course...

Just goes to show that school is only for the rich, elitists if publishers and colleges have their way. Publishers are standing on their soapboxes screaming "NO POOR PEOPLE!!! SCREW YOU ALL!! IF YOU'RE NOT RICH, YOU DON'T DESERVE OUR BOOKS!!" blah blah blah.

Ever wonder why colleges are charging $10k for 12 credits? And what does the government do? Nothing. Why? Oh, yeah. Because they're rich. Amazing!

The Internet was intended as a distributed system, which would avoid a single incident taking down a large number of sites. Perhaps a few more incidents like this may encourage people to host their own data, or a least use small local data centers; placed in and run by local schools, churches and clubs as a service for their member, staff and stucents.
Yes a sledge hammer has been used to crack a nut, but convenience has allowed the concentration of services which allowed the a single hit to do that much damage.
ServerBeach probably calculated that a law suite would cost much more than they get from their client, and so took the safetst route for them.

I might come off as a luddite but I had a few Pearson Publishing text books in college. To prevent people from being able to learn anything from previous editions they kept "updating" the material by changing where it was in the book . They also forced you online or onto your computer with useless DVD's to try to interact learn from two formats at once. More than half of my Anatomy and Physiology class failed because of Pearson. It was so bad the professor had to use PowerPoint in order to make sense of the book.

with great power comes zero responsability

It boggles my mind to no end that there's no punishment for false/overzealous takedown notices (willing or accidental). There's absolutely no incentive to handle this power with the apropriate care.
I bet the politicians who voted this said to themselves, hey these guys aren't in politics, we can trust them to do the right thing without holding a stick back to punish abuse, because we all know economy thrives on fairness, principles and ideology.

A teaching moment

Not that the up-and-coming generation thinks much of copyright anyway, but that movement just gathered a million or so teachers who have just been slapped with the reality of how out of control the whole copyright thing actually is. And they can *teach it to their students*. Maybe the big copyright industries can have everyone under their thumbs for a few more years, but these kids are gonna grow up and be passing some laws. I wonder which teaching moments will leave a lasting impression?

Re: A teaching moment

Speaking from experience, if there is one group of people who care less about copyright, I don't know them. Teachers share - education is based on that concept. Schools simply don't have the funds to exist in a copyrighted world. If it isn't fair use, most of us don't care. As far as I'm concerned, my students education comes first.

The funny part is in all of this that this is not Pearson Publishing's Fault. Rather, it's a hosting company who has arbitrary rules regarding how they handle DMCA complaints, which go far and beyond what is required by law.

Pearson didn't ask for millions of pages to be taken down. They asked for pretty much 1 page. The choice to take it all down is not theirs, it is the hosting company.

Moreover, what the hosting company is in fact within the scope of their hosting agreement, and a manner in which they can choose to limit their liability. Anyone hosting with them is pretty much dead from the neck up if they accept these sort of terms.

If there is any legal issue here, it's the site owner to the hosting company, and nothing else. Pearson is not at fault for flagging content with the DMCA. Fair use claims are the rebuttal to a DMCA notice, not something the right holder needs to determine themselves.

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You: Wait, whoops. That means US websites, servers and providers no longer have protection against copyright infringement claims.

Two quick points on this:

1. When people talk about DMCA reform, they generally mean the crappy parts like the anticircumvention clauses.

2. Even if we did roll back the law and got rid of the DMCA completely, you're wrong that it would mean service providers have "no protection" against such claims. It would wipe out the safe harbor that allows them to easily dismiss such cases, but in no way means they're automatically liable. As we've seen, even in cases where the safe harbor is lost (such as by not registering a DMCA agent), that doesn't mean they're not protected:

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"The funny part is in all of this that this is not Pearson Publishing's Fault. Rather, it's a hosting company who has arbitrary rules regarding how they handle DMCA complaints, which go far and beyond what is required by law."

Actually, no. It is partially Pearson Publishing's faul, as well as other copyright holders like them.

Were they not so tempermental and seemingly vindictive, such a thing wouldn't have happened. Now you might say but how is it their fault? Simple. They intimidate others to the point of complete and total fear of any possible repercussions should they not immediately act on a DMCA notice, up to and including "far and beyond what is required by law".

An interesting point as well. Google through YouTube actively takes down infringing material when notified, as well as has created the ContentID system (on their own dime) to pro-actively allow for the removal of unauthorized content, as well as monetizing any/all content (that isn't taken down). And that STILL isn't enough for the copyright holders.

Despite not being required to even comply with the DMCA, Megaupload did so. And look at them.

I could list countless other examples where companies are going above and beyond what is required by the law and where corporations like Pearson Publishing are still calling for their heads because "they aren't doing enough" (despite doing all required by the law).

So yeah, don't play that card. Some will never be happy. Copyright holders being first in that line of never being pleased.

And that's overlooking the important fact that everything they push for and demand they want others to foot the bill for.

Re: Re:

" They intimidate others to the point of complete and total fear of any possible repercussions should they not immediately act on a DMCA notice, up to and including "far and beyond what is required by law"."

That was the choice of the hosting company, not Pearson. Pearson did not disconnect the client.

"Despite not being required to even comply with the DMCA, Megaupload did so. And look at them. "

BULLSHIT. Mega would disactivate links, but leave the original material on the server with as many other links that pointed to it still active. They didn't handle DMCA properly, they just tried to do legal avoidance of responsiblity.

"I could list countless other examples where companies are going above and beyond what is required by the law and where corporations like Pearson Publishing are still calling for their heads because "they aren't doing enough" (despite doing all required by the law)."

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That was the choice of the hosting company, not Pearson. Pearson did not disconnect the client.

Better safe than sorry. Could it be that this overreaction was caused by overaggressive copyright efforts? See how you didn't address the point?

BULLSHIT. Mega would disactivate links, but leave the original material on the server with as many other links that pointed to it still active. They didn't handle DMCA properly, they just tried to do legal avoidance of responsiblity.

Because if more than a user uploaded the same file they'd only keep one copy to save storage space. One of the users could have gotten the file through legit means (ie: I have a CD and downloaded the mp3 from TPB instead of riping). There's no way they could know exactly who had legitimate ownership. Keep failing, keep failing.

"I could list countless other examples where companies are going above and beyond what is required by the law and where corporations like Pearson Publishing are still calling for their heads because "they aren't doing enough" (despite doing all required by the law)."

Re:

Fair use claims are the rebuttal to a DMCA notice, not something the right holder needs to determine themselves.

Actually, that's not true.

Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with "a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law," the owner must evaluate whether the material makes fair use of the copyright. An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA.

Re: Re:

Great argument Karl, except that fair use is at very best a judgement call, and not something so specifically set out in law. It's not "black letter law", it's something that is a series of tests created by the courts, and failing or passing some of them MAY make something fair use.

Since the law is unclear, the copyright holder is well within their rights to issue a DMCA on things that they have not authorized. The person using the material then replies "we disagree, we feel it is fair use" and the matter can go to court if the rights holder feels the need. That notice and counter notice should be enough to remove liability for the hosting company.

The issue here is that the hosting company, rather than dealing with their client in a fair manner, and rather than giving their client time to make a reasonable reply, instead cut them off, period. Lay the blame where it belongs.

Re: Re: Re:

Great argument Karl, except that fair use is at very best a judgement call, and not something so specifically set out in law.

It's not my argument, it's the argument of the court in Northern California.

Regardless, you're right, fair use is certainly not a black-and-white affair. What the case says is required, is a good faith effort to determine that the use is not fair, before a DMCA takedown notice is sent.

The issue here is that the hosting company, rather than dealing with their client in a fair manner, and rather than giving their client time to make a reasonable reply, instead cut them off, period.

I think there's plenty of blame to go around. Pearson was partially at fault by not considering fair use before issuing the takedown (especially since "multiple copies for classroom use" are explicitly mentioned as a fair use).

Still, regardless of whether Pearson's takedown was legit or not, the actions of ServerBeach are certainly outside of the realm of reason, and certainly were not required by any law. They unquestionably deserve the lion's share of blame for this situation. On that we agree.

It's interesting to me that if this action was undertaken or required by the government, then it would certainly be considered a violation of the First Amendment. Yet many people justify similar actions by the government (e.g. the ICE seizures) without thinking that it involves the First Amendment at all. Many copyright maximalists have advocated that this be standard operating procedure with whatever they think "pirate sites" happen to be at the moment.

Self-correcting....

In the fantastical mythical world of reason, rationality, cause and effect..... what happens next is ServerBeach loses all of their clients who sub-host and a few of the others who have moral convictions, and see a very hurtful (potentially damaging) drop in revenue. And all the other hosting companies across the kingdom tread lightly and thoughtfully, fearing a similar fate.

Meanwhile, in reality, the peasants go on gnawing on the crusty loaf of apathy... and an academic publishing company congratulates itself for not "losing" more money by helping to foster an appreciation for education in students that might one day result in the kinds of adults who might actually read and buy academic or educational books.

Thanks, too bad, we need a cash pool

As always, thanks for the clear explanation of events.

Too bad.

What we need is a cash pool from which to draw funds to set up hosting providers with saner DCMA takedown response policies - and, the deep pockets to make them stick in the face of the publishing giants and the short-sighted hosting providers.

In the context of education, a teacher can copy/distribute anything s/he acquired legally, and it constitutes fair use (provided it's for a lesson--it's contextual). The only thing the teacher could have done that might have made it a copyright infringement is if s/he made it available to the world at large.

Re: Unless the teacher posted it for the world to access, it was probably fair use.

In the context of education, a teacher can copy/distribute anything s/he acquired legally, and it constitutes fair use (provided it's for a lesson--it's contextual).

That doesn't mean he can't be sued for hundreds of thousands of dollars for it though. Sure, the fair use defense would probably hold up in court, but where does that leave the teacher? Unless it's a law professor, in a huge hole.

Pearson and ServerBeach

How about the 1.5 million bloggers who have had their service interrupted sue Pearson and ServerBeach for the damages they have sustained in being wrongfully denied access to their blogs and for being deprived of their rightful means of distribution.

Re: Pearson and ServerBeach

ServerBeach could have worked better with the site, but taking their servers offline is the standard policy of any hosting company. If ServerBeach attempted to go in and remove the offending material only, then they would open themselves up to liability. We are talking about a site powered by a CMS, which means you either need an admin account on that site to delete the content or have to go in and delete the item from the database, and hope you know the software well enough to get rid of everything.

Their actions were appropriate, just the limited amount of time to comply is in question.

Root Causes of this DMCA are ...

As Gandhi said of Western Civilization, I repeat about American Democracy: That would be a good idea. We have arranged that our elected officials have a built in conflict of interest between their voters interests and those of their funders. This has led to extensions of copyright that have little to do with the purpose of copyright in the first place. That this stupidity leads to further stupidity in the application of unjustifiable legislation is not very surprising to me.

Would you like to fix this problem? Then strike at the root and thereby address a very large host of problems of this nation in the modern era. Informed rational action can, occasionally, have widely beneficial effects.